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The wind is shifting in native title

Attorney-General Nicola Roxon MP has released an exposure draft of the Native Title Amendment Bill 2012 (Cth). The draft is open for comment until 19 October 2012.

The bill does three main things.

It codifies what "negotiating in good faith" requires in the right to negotiate processes, based on the Fair Work Act;

It enables native title to revive in parks and reserves vested for environmental purposes (previously, native title, once extinguished, was unable to revive); and

It makes administrative changes to ILUAs and gives native title groups who do not have a registered claim rights in the authorisation process.

Negotiating in good faith – a higher standard?

The draft bill sets criteria for negotiating in good faith that requires parties to ‘use all reasonable efforts to reach agreement’. This will set a higher threshold than required to date, and will encourage parties to move beyond the preliminary negotiation stage that passed the test in FMG Pilbara Pty Ltd v Cox (2009) 255 ALR 229.

The negotiating criteria will be based on the Fair Work Act, not those set out in the Njamal case. The criteria set out relevant factors in determining whether a party can demonstrate good faith, rather than criteria that show a lack of good faith. They include attending and participating in meetings, disclosing relevant information in a timely manner, making reasonable offers and counteroffers, responding to proposals in a timely manner, giving consideration to others’ proposals, refraining from capricious or unfair conduct that undermined negotiation and refraining from acting for an improper purpose.

The draft bill extends the requirement to negotiate before seeking a determination from the NNTT from 6 months to 8 months, starting when the s 29 notice is issued. The party applying to the NNTT for a determination (usually the party seeking tenure) will need to show that they have negotiated in good faith. If they haven’t, the NNTT can order that they cannot apply for another determination for a set period.

The Government hopes this will encourage parties to focus on negotiated, rather than arbitrated outcomes and improve the balance of power between negotiating parties.

Reviving native title by agreement

The draft bill enables the government and native title parties to agree to disregard extinguishment of native title in parks and reserves vested for environmental purposes. It means that a determination that native title is extinguished will not be a finite determination for these areas.

The proposal applies more broadly than national parks. It enables native title to be revived in any land that is vested for a purpose that includes, preserving the natural environment of the area, as has been the case to date.

Native title can revive without the agreement of other interest holders, such as tenement holders.

However, the government party must give notice of the proposed agreement and provide interested persons with two months to comment. The agreement cannot affect existing interests. Those interests will continue to exist and will prevail to the extent of any inconsistency with the revived native title.

The revival has the potential to affect the ability of interest holders to apply for new tenure in the future, and compensation liabilities. For example, if the native title revives, an exploration tenement holder will then need to go through the right to negotiate to have a mining lease granted (this may not make a significant practical difference in circumstances where heritage interests also exist in the area, because negotiations may be required in that case anyway).

Indigenous Land Use Agreements

The draft bill clarifies that ILUAs can deal with restrictions on native title rights (under s 211 of the Act) and native title determination and compensation applications. It also clarifies that body corporate ILUAs can be made over areas where native title has been extinguished, if the extinguished area forms part of the agreement area.

It proposes to change the authorisation and registration process for area ILUAs, including by:

reducing the objection period from three months to one month;

giving those who claim native title a right to object to registration of an ILUA that has not been certified by a representative body; and

giving parties who do not have a registered native title claim (but can establish a prima facie case that they may hold native title) a right to take part in the authorisation decision. This will reverse the outcome of the decision in QGC Pty Ltd v Bygrave [2011] FCA 1457, which had found that ILUAs can be properly authorised by registered native title claimants only.

The draft bill provides that parties will not need to re-register an amended ILUA for minor amendments that do not affect the conditions relevant to registration, provided that the parties notify the Registrar of the changes.

The Government has given the following examples of amendments which it says will not give rise to a need to re-register an amended ILUA:

Updated legal property descriptors (provided they do not change the geographic area covered by the ILUA);

Updated identification of a party (e.g. where parties have assumed or transferred responsibility under the ILUA, or where a party is deceased);

The draft bill does not provide any certainty as to what will constitute a minor amendment and leaves the risk on the parties. This could be alleviated by requiring the Registrar to notify parties when re-registration is required.

Next Steps

You can make a submission on the draft bill by 19 October 2012.

Negotiation strategies, ILUA authorisation plans and agreements that cover parks and reserves should be reconsidered in light of the amendments.

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